DA Vance Urges Trump Administration to Scrap Proposed Rule on Hiring and Diversion Programs


April 23, 2019
In Official Rulemaking Comment, D.A. Warns Proposed Rule Would Result in Discrimination and Undermine Recent Justice Reforms

 
Manhattan District Attorney Cy Vance, Jr. today filed comment with the U.S. Office of Personnel Management in opposition to a Proposed Rule that would require jobseekers who receive employment offers from the federal government or a federal contractor to disclose their previous completion of a criminal diversion program.
 
“On behalf of the Manhattan District Attorney’s Office, a national leader in the utilization, funding, and promotion of diversion and reentry programs . . . I share with you my strong opposition to the Trump administration’s proposed new rule,” wrote District Attorney Vance. “Those who have paid their debt to society, whether by serving a criminal sentence or completing a criminal diversion program, should be restored to full citizenship and share in the equal rights afforded to members of their community.
 
“This collective national movement to eliminate questions about conviction history directly bears on Americans’ ability to earn a living, support their families, contribute to their communities, and remain arrest-free. How do we, as a society, take steps to ensure that fellow citizens who have paid their dues become contributing members of society? We should focus on their future, not their past, and ban questions about diversion in the federal hiring process.”
 
D.A. Vance’s comment is available here, and is reproduced in full below:
 
Margaret Weichert, Acting Director
U.S. Office of Personnel Management
1900 E Street, NW
Washington, DC 20415-1000
 
Re: Docket number OPM-2019-0002-0001
 
Dear Acting Director Weichert,
 
On behalf of the Manhattan District Attorney’s Office, a national leader in the utilization, funding, and promotion of diversion and reentry programs, I appreciate this opportunity to provide comments in response to the Notice of Proposed Rulemaking to the Declaration for Federal Employment’s Optional Form (OF) 306.
 
President Trump’s proclamation of April as “Second Chance Month” called upon all Americans to commemorate this month, in part, with activities that raise public awareness about “providing those who have completed their sentences an opportunity for an honest second chance.”[1] It is in that spirit that I share with you my strong opposition to the Trump administration’s proposed new rule to require applicants for federal jobs or contractor positions to inform their employer if they have completed a diversion program. Such a rule, if enacted, would open the door to hiring discrimination for thousands of citizens, undercut the rationale for diversion programs, and potentially bring harmful unintended consequences for public safety. As such, not only is the proposed rule at odds with the President’s laudable proclamation, it threatens to undermine the central goal of the bipartisan First Step Act: increasing successful reentry. 
 
Every day, my Office extends “second chances” to justice-involved New Yorkers through diversion and reentry programs funded by our Criminal Justice Investment Initiative. Working with community-based providers and government partners, CJII creates alternatives to incarceration and helps formerly incarcerated citizens successfully reenter their communities in order to reduce recidivism and improve public safety.[2] Among other signature diversion and alternative-to-incarceration programs, we have invested more than $7 million in:
 

  • Project Reset, which diverts people arrested for low-level offenses into tailored, community-based responses;
  • Manhattan HOPE, which allows people arrested for low-level drug offenses to complete a treatment program in lieu of entering criminal court; and
  • Project Green Light, which provides New Yorkers who fail to answer a motor vehicle summons or pay a fine an opportunity to clear their suspensions and avoid obtaining a criminal record.

 
We invest in diversion programs like these not only because they hold charged individuals accountable while reducing recidivism, but also because they avoid the negative collateral consequences that accompany criminal prosecution, which can ruin an individual’s chances for employment, housing, education, and military service, even years after a prosecution is complete. Indeed, central to our diversion strategy is the recognition that a criminal record reduces the likelihood of future gainful employment, which in turn increases the likelihood of future re-offense.[3]
 
Those who have paid their debt to society, whether by serving a criminal sentence or completing a criminal diversion program, should be restored to full citizenship and share in the equal rights afforded to members of their community. This is why my Office hires formerly incarcerated New Yorkers, and why we have long supported the “ban the box” movement, which has opened employment opportunities for thousands of New Yorkers by prohibiting New York employers from asking job applicants about their criminal records in most employment contexts. We are in good company on this issue. Nationally, 34 states and more than 150 cities and counties have supported similar fair hiring policies to remove the conviction history question from job applications and to delay background checks until later in the hiring process.[4]
 
This collective national movement to eliminate questions about conviction history directly bears on Americans’ ability to earn a living, support their families, contribute to their communities, and remain arrest-free. Formerly incarcerated people are unemployed at a rate of more than 27 percent – higher than the total U.S. unemployment rate during the Great Depression, according to a study by the Prison Policy Initiative.[5] Diversion programs, such as my Office’s Project Reset, aim to produce better outcomes – outcomes that ensure individuals who have made a single mistake are not shadowed by that mistake for years to come when they seek work. Ninety-eight percent of teens who have been diverted to Project Reset complete its two sessions of interventions, according to the Center for Court Innovation, and recidivism among that group is less than 10 percent.[6]
 
The Trump administration’s new rule for Optional Form 306 would stigmatize people who have demonstrated a commitment to charting a new life course. In so doing, this rule would make it more difficult for them to obtain a federal job and create a greater likelihood that they would reoffend. This, I believe, is in conflict with President Trump’s stated goal and those of the bipartisan legislators who passed the historic First Step Act.  
 
“During Second Chance Month, we draw attention to the challenges that former inmates face and the steps we can take to ensure they have the opportunity to become contributing members of society,” President Trump stated in his proclamation.
 
How do we, as a society, take steps to ensure that fellow citizens who have paid their dues become contributing members of society? We should focus on their future, not their past, and ban questions about diversion in the federal hiring process.
 
Thank you for the opportunity to comment on the proposed rulemaking. If you have any questions, please contact me at 212-335-9000.


[1] Whitehouse.gov. March 29, 2019. “Proclamation on Second Chance Month, 2019.” https://www.whitehouse.gov/presidential-actions/proclamation-second-chance-month-2019/
[2] CUNY Institute for State and Local Governance. “Manhattan District Attorney’s Criminal Justice Investment Initiative.” https://www.manhattanda.org/wp-content/uploads/2019/03/Criminal-Justice-Investment-Innitiative-status-report-March-2019.pdf
[3] Id.
[4] National Employment Law Project. “Ensuring People With Convictions Have A Fair Chance To Work.” https://www.nelp.org/campaign/ensuring-fair-chance-to-work/
[5] Couloute, Lucius and Daniel Kopf. July 2018. “Out of Prison & Out of Work: Unemployment among formerly incarcerated people.” https://www.prisonpolicy.org/reports/outofwork.html
[6] Dalve, Kimberly and Becca Cadoff. January 2019. “An Evaluation of a Pre-Arraignment Diversion Program in New York City.” https://www.courtinnovation.org/sites/default/files/media/document/2019/projectreset_eval_2019.pdf